Risk of psychological damage to deportee’s British child meets the “very compelling circumstances, over and above” high threshold test

Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982 (12 June 2019), is one of those few deportation appeal cases in the Court of Appeal, where a deportee convicted of a serious offence successfully resisted deportation; not merely because he had a British child residing in the UK, but because of the impact his deportation would have upon the child.

Seriousness of offence

The Appellant was noted to have a “bad criminal record”. Relevantly, on 23 September 2011 he was sentenced to five years’ imprisonment on counts of possession of heroin and cocaine with intent to supply. He was released from custody in August 2013.

Relevant law

Of particular relevance in the appeal was the applicability of Section 117C(6) in Part 5A introduced into the Nationality, Immigration and Asylum Act 2002, by Section 19 of the Immigration Act 2014:

“(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.

The private life( Exception 1) and family life( exception 2) exceptions in Sections 117C(4) and 117C(5) did not apply as JG had been sentenced to at least four years’ imprisonment.

Paragraph 399 of the Immigration Rules is broadly equivalent to “Exception 2” in section 117C (5), so far as concerns a parental relationship, though it splits out “the effect of [the parent’s] deportation” into the two possible scenarios, i.e. where the child goes with the parent and where he or she remains behind without them.

Paragraph 399A describes circumstances relating to private life and is in identical terms to Exception 1 as defined in section 117C (4).

Meaning of phrase “very compelling circumstances, over and above those described in Exceptions 1 and 2”

The Court reiterated that in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, [2017] 1 WLR 207, the Court of Appeal addressed the meaning of the phrase in section 117C (6) “very compelling circumstances, over and above those described in Exceptions 1 and 2”:

“29. …. The phrase used in section 117C (6), in para. 398 of the 2014 … does not mean that a foreign criminal facing deportation is altogether disentitled from seeking to rely on matters falling within the scope of the circumstances described in Exceptions 1 and 2 when seeking to contend that ‘there are very compelling circumstances, over and above those described in Exceptions 1 and 2’. … [A] foreign criminal is entitled to rely upon such matters, but he would need to be able to point to features of his case of a kind mentioned in Exceptions 1 and 2 (and in paras. 399 or 399A of the 2014 rules), or features falling outside the circumstances described in those Exceptions and those paragraphs, which made his claim based on Article 8 especially strong.

30. In the case of a serious offender who could point to circumstances in his own case which could be said to correspond to the circumstances described in Exceptions 1 and 2, but where he could only just succeed in such an argument, it would not be possible to describe his situation as involving very compelling circumstances, over and above those described in Exceptions 1 and 2. One might describe that as a bare case of the kind described in Exceptions 1 or 2. On the other hand, if he could point to factors identified in the descriptions of Exceptions 1 and 2 of an especially compelling kind in support of an Article 8 claim, going well beyond what would be necessary to make out a bare case of the kind described in Exceptions 1 and 2, they could in principle constitute ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’, whether taken by themselves or in conjunction with other factors relevant to application of Article 8.”

The Court of Appeal reviewed the following caselaw:

• MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, paragraph 42

• Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, paragraphs 37-38; paragraph 50

• In NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, [2017] 1 WLR 207, paragraphs 29 and 30

• In Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4203,

• NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239, paragraphs 14 and 15

• KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273, paragraph 23

Having considered the above judgements, the Court concluded as follows at paragraph 16:

“The upshot of those decisions, so far as concerns the present case, is that in so far as the Respondent sought to rely on the effect of his deportation on his son (who, being a British citizen, was a qualifying child) it would not be enough to show that that effect would be “unduly harsh”, in the sense explained in KO. That would satisfy Exception 1, but because his case fell within section 117C (6) he needed to show something over and above that, which meant showing that the circumstances in his case were, in Jackson LJ’s phrase in NA, “especially compelling”. In short, at the risk of sounding flippant, he needed to show that the impact on his son was “extra unduly harsh”.

Relevant British child – considerations and evidence that was before the First Tier Tribunal(FTT)

The ultimate question was whether the decision of the FTT Judge in allowing JG’s appeal was correct. The facts and evidence that were before the FTT Judge was as follows in summary:

• JG lived with his British son. The mother however saw him nearly every day. • JG was the primary carer of the child

• The mother had found looking after the child while JG was in prison “difficult”.

• The mother had a job and was also attending university.

• JG had a genuine and subsisting relationship with his child.

• As regards “the nature and quality” of the relationship JG, had with his son, this was described as “close” following his release from prison.

• It was noted that it had not been argued that the child or his mother could reasonably be expected to move to Jamaica.

• JG had for some time been displaying symptoms of emotional and psychological damage and was under the care of the North Bristol Child and Adolescent Mental Health Service (“the CAMHS”).

• The Judge referred to, and quoted from, a number of letters from the local NHS Trust and/or the CAMHS and to two reports, the more recent being from an independent social worker

• The Judge quoted a letter from the Trust which referred to the child as suffering from “sleep difficulties and tempers, physicality and emotional upset”, with “oppositional behaviours and threats of self-harming”, and described his bond with his father as “intense”.

• JG regarded himself as responsible for the self-harming, because of his having been away in prison.

• The Judge summarised the effect of the Independent Social Worker’s report as being that “there will be serious emotional harm to the child if the appellant is deported at this time”.

The Judge’s conclusion on the evidence before him was that:

• there are very compelling reasons over and above those in paragraphs 399 and 399A.

• the separation of JG from his child and extended family was in the public interest but the strong (very weighty) public interest in the case was outweighed by the appellant’s interests and those of the child concerned and his partner.

• JG met the requirements of the immigration rules namely that there were very compelling reasons over and above the matters listed in paragraph 399 and 399A which outweighed the public interest in his case.

• JG met the immigration rules and he met the exceptions in section 117. The public interest which had great weight in his case was outweighed by the combination of all the factors. This included the appellant’s private and family life and the best interest of all the children( including his step- children) involved in the case.

Court of Appeal’s conclusions – upholding the First Tier Tribunal Judge’s decision

The Court of Appeal considered and concluded as follows in upholding the First Tier Tribunal Judge’s decision:

• Although it was clear that the Tribunal Judge had taken into account the impact of JG’s deportation on himself and on his Partner and the children in both his extended families, it was clear from the FTT Judge’s reasoning that the decisive consideration was the impact on his British child in the light of the professional evidence about him.

• It was accept that the Judge had directed himself correctly as to the exercise required by section 117C of the 2002 Act and the corresponding provisions of paragraphs 398-399A of the Immigration Rules.

• The Judge clearly understood that JG needed to show that there were very compelling circumstances over and above those covered by paragraphs 399 and 399A of the Rules (and Exceptions 1 and 2 in section 117C. It was noted that the Tribunal Judge had repeatedly acknowledged that was a very high hurdle, given the great weight of the public interest in deporting foreign criminals who had committed offence attracting a sentence of over four years imprisonment

• It was clear that the Judge regarded the decisive factor in his conclusion as being the damage to the child’s mental health likely to be caused by JG’s deportation. • It is well-recognised in the case-law that the removal of a parent will generally have an adverse impact on the wellbeing of any child with whom he or she has a subsisting relationship but that in itself will not constitute a sufficiently compelling reason to satisfy section 117C (6) (or the equivalent Rules).

• However, the evidence before the Tribunal Judge in this case was at least potentially capable of showing that there was in the present case a risk of harm to the child’s mental health that reached the necessary threshold. It did not rely on the “mere” impact of separation but on the specific psychological damage evidenced by the materials.

• The Court of Appeal could only go behind the Judge’s decision if it was one which was not reasonably open to him on the evidence. For such a challenge to succeed it would have been necessary for the Court to be taken through the evidence to show that it was incapable of supporting a conclusion that the harm to the child reached the necessary threshold. The Court observed that Counsel for the Secretary of State did not undertake that exercise. The Court also noted that the letters and reports to which the Tribunal Judge referred were not in the papers before them. There was thus no basis on which the Court could say that the Judge’s decision was not reasonably open to him. On that basis the Court upheld the Upper Tribunal’s decision that perversity had not been established.

• The Court also stated that it was important that in any case involving the deportation of a foreign criminal, the First Tier Tribunal should make it clear in its reasoning that it had reached its decision by performing the structured analysis required by section 117C and paragraphs 398-399A of the Rules. Specifically, if it believes that the high threshold required by section 117C (6) has been crossed it must say why. It may be possible to identify some particular factor that is decisive, in which case it should do so. But that will not always be the case. It may be simply that the factors that would be sufficient to satisfy paragraphs 399 and/or 399A (i.e. Exceptions 1 and/or 2 in section 117C) are present to a specially high degree, In such a case all that the tribunal can do is make it clear that that is its view.

• It was sufficiently clear from the Tribunal Judge’s reasons both that he took the structured approach required by section 117C and why he regarded the threshold in sub-section (6) as crossed. The very compelling circumstances on which he relied were, essentially, the severity of the harm that the child was likely to suffer if JG were deported.

• It was clear that in this case the only element capable of crossing the high threshold required by section 117C (6) was the impact on the child, and it was on that which the Judge rightly focused.

• It has been clear since MF (Nigeria), and is reinforced by NE-A (Nigeria), that the question whether deportation of a foreign criminal would involve a breach of his, or his family’s, rights under article 8 can and should be conducted in the context of the decision whether there are “very compelling circumstances” of the kind required by paragraph 398 and, now, section 117C (6): a free-standing article 8 assessment, undertaken outside the statutory structure, is inappropriate.

• Although it was submitted on behalf of the Secretary of State that the fact that the Judge conducted a free-standing article 8 exercise at some points in his decision cast doubt on whether the earlier exercise by reference to the Rules was in fact approached in the correct structured manner, the Court of Appeal concluded that Judge’s Rules-based analysis was unimpeachable on its face: in the absence of any sign that he fell into the error alleged, the Court did not consider that it could be impeached on the basis that he subsequently performed a different exercise.

• The Secretary of State’s appeal was dismissed.

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